Two-year-old law allows relatives to be prosecuted for lying to police

Monday

Jul 28, 2008 at 12:01 AMJul 28, 2008 at 9:38 AM

Parents, siblings and legal guardians can be charged with being an accessory after the fact in Massachusetts, but legally they can’t be convicted.

Maureen Boyle

Sometime after John J. McCarthy of Brockton was struck by a sports utility vehicle and left to die along Route 138 in Easton, the accused driver left a voice mail message for his brother.

Call immediately.

And in the days that followed, prosecutors allege, the brother, Daniel Faria, helped fix the damaged SUV and get rid of car parts linking the vehicle to the death.

Now, Faria, 31, faces charges under a 2-year-old witness intimidation law that he lied to police and tried to get another witness to lie. His brother, the driver of the SUV, Michael Faria, is charged with motor vehicular homicide.

The case highlights what happens when family loyalty clashes with the law.

It illustrates some of the extremes to which brother, sister, mother or father go to protect a loved one from jail.

And it raises questions abut when legal lines sever blood lines — and what can happen when it does.

“It is difficult for families because they are families first of all,” said Michael A. Vitali, a Brockton defense attorney who teaches the course, “The Accused,” at Stonehill College in Easton.

In Massachusetts and throughout the country, relatives of the accused are finding themselves facing judges for trying to cover up crimes or divert attention away from loved ones.

In Pittsburgh, officials were deciding whether to charge the sister of a woman accused of killing a pregnant woman and cutting the baby from her womb after she led police to the wrong apartment when authorities tried to find the suspect.In New York, a police officer was accused last year of trying to hide the bullet-struck SUV that authorities claim her husband drove after shooting and wounding an undercover officer.In Taunton, a relative who gave police the wrong description of a vehicle in a crime, to divert attention away from a loved one, now faces charges of lying to authorities.In Connecticut, the parents of a 19-year-old college student were convicted earlier this year with covering up his role in the hit-and-run death of a U-Conn student on the Storrs, Conn., campus.

“The motive to lie or not be completely cooperative goes up when you are talking about a relative,” said David Frank, a former prosecutor and reporter at Massachusetts Lawyers Weekly.

Law is not simple

Spouses can’t be forced to testify against each other in Massachusetts.

But the law dealing with how much to say — or not say — is not as simple when it comes to other relatives.

Parents, siblings and legal guardians can be charged with being an accessory after the fact in Massachusetts, but legally they can’t be convicted. That’s because being a parent, sibling or guardian is a legal defense to any prosecution.

But changes to the witness intimidation law two years ago in a bid to curb gang violence now makes it easier to charge relatives who lie to police or try to cover up crimes. There’s no provision giving family members any defense or immunity if they lie to police investigating the crime — or try to get someone else to lie.

James Fagan, a defense attorney and state representative from Taunton, said he’s had cases where relatives wound up in court themselves after giving police statements “which were less than accurate.”

“I think in virtually every instance, that type of action is motivated by a sense of being protective of a family member,” he said.

Raynham Police Chief Louis J. Pacheco said he’s seen cases where parents try to hide cars used in hit-and-run cases or cover up other crimes of their children.

“Parents are giving kids alibis,” he said. “They are saying, ‘It couldn’t have been my son. He was right here all night.’ You tell them, ‘He wasn’t there. We know it. We have eight witnesses putting him at the scene.’ Then they finally back off.”

Under the law, parents and siblings of a defendant can be forced to testify before a grand jury. But Kevin Reddington, a defense attorney who has handled a wide range of high-profile cases, said that’s not always the best thing to do.

“Whether or not there is a heinous crime or not, you do not put a suspect’s mother before a grand jury and threaten to put her in jail if she doesn’t testify against her son,’ he said. “You have to respect that family bond.”

Investigators would be better served getting more evidence — other than the testimony of a relative — to present at trial, he said.

Blood thicker than law?

In the hit-and-run death last weekend in Easton, prosecutors allege that Michael Faria of Stoughton was driving on Route 138 when he struck John McCarthy, 58, of Easton, who was on a walk. Faria later called his brother Daniel and left a voice-mail message telling him to call back immediately, according to court papers.

Daniel Faria first told investigators he didn’t help his brother fix the SUV after the accident and didn’t even know his brother was in an accident. But, later, he changed his story, saying his brother told him he struck a deer and Daniel only helped him order parts to fix the SUV.

Later, Daniel admitted that he scattered the damaged vehicle parts and showed police where he put them.

Thomas J. Minichiello Jr., the lawyer representing McCarthy’s estate, said family ties should provide no defense when a life is at stake.

“The main question is how soon after the accident did Michael Faria call someone? That person could have called 911. Perhaps John may have been here today if that happened,” he said.

“It is a pretty sad state of affairs when someone is withholding information when there is a death involved,” he said, “without any regard for the family or the victim.”

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